1

ANNEX J

ICANN Re-Consideration Request filed by .MUSIC

.music LLC / Far Further

Proof that the .music LLC/Far Further Application has

Exclusive-Access Language creating a likelihood of material

harm to the community

Proof that the current .music LLC Application with ID

1-959-51046 is inconsistent with their GAC Category 2 Advice

Response to ICANN

i) Background - Pg.2

ii) How .music LLC’s Application creates Material Detriment - Pg.3

iii) Correspondence with ICANN and ICC - Pg.16

iv) Correspondence with Panel and ICC and Proof of Exclusive Access

Language in .music LLC’s Application - Pg.18

v) .music LLC GAC Category 2 Advice Response - Pg.23

vi) DotMusic Opposition Letter and Concerns with .music LLC’s Application

(June 29th, 2013) - Pg.25

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i) Background

With respect to GAC Category 2 Advice Response, ICANN did not verify whether

some Applications had exclusive access language. This allowed Applicants (such as .music

LLC with ID 1-959-51046) to circumvent the change request requirement initiated by ICANN

if objected-to Application contained exclusive access language as disclosed in those

Applicants’ GAC Responses.1

In such cases where there is a clear discrepancy between what the Application states

and what the objected-to Applicant provided in their Response, ICANN has not taken any

action to ensure that these Applicants are required to submit a change request since “the

Registry Agreement provides that registry operators of a "generic string" TLD may not

impose eligibility criteria for registering names in the TLD that limit registrations exclusively to

a single person or entity and/or that person's or entity's "Affiliates" (Section 2.9(c) of Registry

Agreement).

GAC Advice and NGPC Resolutions agree that such exclusive access language for

generic music-themed strings create a likelihood of material harm and Objections or

opposition to such Applications are relevant and justified. The Community Priority Evaluation

Guidelines also assert that such opposition “must be of reasoned nature and sources of

opposition that are clearly spurious, unsubstantiated, made for a purpose incompatible with

competition objectives” be rejected (CPE Guidelines, P.202). Since such opposition and

Objections are directly related to “competition” and are issues that both GAC Advice and

ICANN have agreed upon, they are of reasoned nature and material to the new gTLD

Program.

1 http://newgtlds.icann.org/en/announcements-and-media/announcement-4-09oct13-en

2 http://newgtlds.icann.org/en/applicants/cpe/guidelines-27sep13-en.pdf

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ii) How .music LLC’s Application creates Material Detriment

The .music LLC application3 creates a likelihood of material detriment to the rights or

legitimate interests of a significant portion of the community to which the string may be

explicitly or implicitly targeted on the grounds of discrimination based on its exclusionary

eligibility and registration policies.

The application’s nature creates significant economic, cultural and reputational damage.

These exclusionary policies clearly illustrate that the applicant is not acting in accordance

with the interests of the entire community, including music fans/consumers. It only serves a

select group of associations with “accreditation” that was established without any publicly

recognized criteria and designed solely in conjunction with the gTLD process. The

“Accreditation” has never been historically recognized by the global music community before

the ICANN gTLD application process.

A substantial portion of the community uses the Internet to perform core activities such as

communication, marketing, branding, distribution and sharing. By excluding a substantial

portion of the community, such as Do-It-Yourself artists, music fans and other members who

do not belong to “Accredited” associations negatively interferes with core Internet-related

activities that the music community participates in.

A substantial majority of the community do not belong to “Accredited” Associations formed

before 2007 as portrayed by .music LLC in their Application. The exclusion of the community

not belonging to “Accredited” Associations formed before 2007 from registration eligibility

and prevention from associating and branding themselves using a culturally semantic

“music” string identifier not only creates a culturally harmful division within the music

community but also creates other detrimental outcomes such as anti-competitive issues and

infliction of material economic and artistic harm.

Detrimental issues that the highly restricted application creates include based on

discrimination grounds include:

3 https://gtldresult.icann.org/application-result/applicationstatus/applicationdetails/1659

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A. EXCLUSION NEGATIVELY HARMING LEGITIMATE PARTICIPATION, CORE

ACTIVITIES AND USER EXPERIENCE

Excluding a significant portion of the community that has no formal association with

“Accredited” associations from registration and participation harms the community and will

have substantial negative repercussions to the applicant’s mission to create a “trusted brand”

under the string since credibility is strongly tied to creating a trusted brand. If a majority of

credible and legitimate music community members are excluded, this will negatively affect

the string, its core activities, user experience and consumer trust to a great extent.

Consumer trust is an integral factor for launching the new gTLD program and a critical

component outlined by ICANN and the U.S government in their Affirmation of Commitments

to “promote competition, consumer trust, and consumer choice in the DNS marketplace.”4

The applicant states that those community members “who produce, play or practice the art of

music is at loggerheads with those who consume it” and that their application “challenges

that notion by focusing on the one thing they both have in common: a passion for music.”

The application asserts that “for the music to last, there has to be a balance between the

needs and desires of both” those music community types and re-affirms that “the era of

perceived friction between the producers and consumers of music is about to end, as both

find a new platform where their mutual interests and desires coalesce for the combined

greater benefit (18a).”

However, their application’s restrictive eligibility and registration policies prove otherwise by

excluding music fans/consumers altogether thus creating “friction” through discrimination.

This discrimination will negatively harm the proposed mission and purpose which is at odds

and continually inconsistent with the nexus and the strict, clear delineation of music

community as aforementioned and defined by the applicant.

The applicant continually addresses music consumers as integral constituents that form the

music community but yet does not consider them eligible for registration, despite the

applicant’s “express intent and purpose of serving a community established and known

worldwide, which despite location, culture or genre, is identified and united by a single word:

music (20a).” The applicant even admits that fans are crucial stakeholders but does not

4 http://www.icann.org/en/news/announcements/announcement-30sep09-en.htm

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include them in their "nexus" and makes them ineligible from registration because the

"interests of creators were assumed to be at odds" with the interests of music fans. However,

the application acknowledges that both constituents are essential and that “one cannot exist

without the other” and that "both have something crucial in common: a passion for music,

and a symbiotic relationship (20d)." This showcases with certainty that exclusion of one

constituent creates substantial detriment to the entire music community, not merely to a

majority of it.

The applicant continually affirms that its purpose is to serve a community united by the word

“music” but eliminates a substantial portion of the community, such as music

fans/consumers, buskers, informal participants and Do-It-Yourself (DIY) artists. DIY artists by

definition do not belong to “Accredited” associations. The DIY ethic refers to the ethic of self-

sufficiency through completing tasks without the aid of a paid expert or association with third-

parties relating to task performed. In "Cultures of Authenticity and Deconstruction," Ryan

Moore explains that “the process of creating independent media and interpersonal networks

in opposition to the corporate media is referred to as the “do-it-yourself,” which enabled

“spectators to become participants” and “enabled a sense of local community.5

Music fans/consumers and Do-It-Yourself artists by definition do not have membership in an

“Accredited” association and thus are discriminated against and blocked from registration

despite the applicant recognizing and acknowledging that both “creators” and “consumers”

are, indeed, members of the community: “The music community is dedicated to faithfully and

concurrently meeting the needs of both “creators” and “consumers” of music alike” (20a).

Historically-speaking, any participation within the music community, such as attending a

music concert, street team or word of mouth marketing or artist crowdfunding, does not have

any requirement of affiliation with any association. Community members never had to belong

to “Accredited” associations to be considered legitimate and eligible. The application clearly

acknowledges that their "definition of the music community does not have individual

consumers of music" unless they are forced to "belong to one of the “Accredited” Member

Organizations of the Global Music Community," a loose club of associations/organizations

called Charter Member Organizations.

5 http://www.stevenlaurie.com/wp-content/uploads/2012/01/moore-punkauthenticity.pdf

6

The applicant’s premise of the alleged conflict relates to commercial activities. Music

constituents also include non-commercial constituents. The application focuses entirely on

commerce to justify its "odds" with music consumers. This ignores the significant portion of

the music community that is non-commercial in nature and culturally driven. Music culture

has historically existed ages before modern music commerce. Recorded music is a fairly

recent phenomenon in the chronology and evolution of music from a historic perspective and

only came to fruition following the invention of the gramophone in 1888.6

Music fans are not in conflict with the music community. They add value. If fans were in

conflict with commercial entities then under the same token musicians should be considered

to be in conflict with commercially-driven instrument manufacturers. However, one can not

exist without the other.

Despite fans and DIY artists fulfilling the applicants community delineation, namely in the

“advocacy, promotion, distribution, even financing of music” they are excluded from

registering a .music domain.

Today, fans share and distribute music. Many fans form street teams to help market artists'

music and spread the word. Others administer artist fan sites that are focused on enhancing

an artist's brand. The Internet has facilitated fan funding through outlets such as Kickstarter,

Sellaband, Pledge Music and Indiegogo, with many in the music industry claiming this is the

new "record labels" of the future: artists get to keep all their rights and the funders - the fans

- benefit too. For example, Amanda Palmer raised nearly $1.2m from fans on Kickstarter.7

Kickstarter alone has generated over $41m in fan funding for music artists. Many major

artists such as Public Enemy (59,100 Euros),8 George Clinton

9 ($50,419) and Ben Folds

Five10

have used fan funding as well. Independent artists such as Five Iron Frenzy11

($207,980) and Murder By Death12

($187,048) are amongst hundreds of thousands of artists

that choose fan funding as their new source of financing, sharing and promoting their music.

"The business as we know it is broke," says Peter Jenner, legendary artist manager of Pink

Floyd. "Digital technology is fundamentally changing our business in a way that no

6 http://www.pbs.org/wgbh/pages/frontline/shows/music/inside/cron.html

7 http://www.kickstarter.com/projects/amandapalmer/amanda-palmer-the-new-record-art-book-and-tour?ref=card

8 https://www.sellaband.com/publicenemy

9 http://www.indiegogo.com/Fundraser-for-C-Kunspyruhzy-and-What-Studios

10 http://www.pledgemusic.com/projects/benfoldsfive/

11 http://www.kickstarter.com/projects/fiveironfrenzy/new-five-iron-frenzy-album?ref=card

12 http://www.kickstarter.com/projects/murderbydeath/murder-by-death-new-album-bitter-drink-bitter-moon?ref=card

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development in the last 200 years has, except for the onset of electricity. The consumer is

now the distributor and manufacturer, which represents a fundamental change in the value

chain of who gets what."13

Former chairman of major music label EMI Alain Levy wrote an article posted by the

International Federation of the Phonographic Industry14

that represents the recording

industry worldwide (1400 members in 66 countries and affiliated industry associations in 56

countries). In “Digital Music and How the Consumer became King” Levy re-iterates the

significance music fans play in today’s music culture and business and should not be

discriminated against:

“More music is being consumed than ever before. Fans want music their way, not the

way that content owners dictate…Consumers have an increased and vital role, of that

there is no doubt. The music companies continue to reinvent themselves to harness

the power of the consumer by understanding that the internet has changed the face

of promotion. Now the windows have shifted and the online world starts the first buzz,

with music companies giving fans the tools to discover and promote their favourite

bands. The new digital consumer has impacted every area of our creative process -

they have changed the way we source, present and market our content in every way.

Communities are the places for aspiring artists to showcase or demo their sounds,

and we have the added benefit that the consumer is right there with us during the

discovery process voting on an artist's popularity by virtue of their clicks…The

implication of the online world is that we are now picking up artists who are slightly

more mature in terms of development and the strength of their online fan

base…Marketing has moved from push to pull. Consumers are now the marketers

and distributors of content too. Music regularly provides the consumer with marketing

assets like banners, images and video and audio free samples to encourage them to

promote their favourite band...allowing the consumer to become part of the creative

process both online and in traditional media.

It's all about embracing and encouraging consumer involvement and recognising that

content will be used to create more content. Content providers that listen to the

13 http://articles.chicagotribune.com/2006-10-15/news/0610150197_1_music-industry-future-of-music-coalition-tower-

records 14

http://www.ifpi.org/content/section_about/index.html

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consumer will drive compelling content and thrive. If there were a media executive

generated 'most viewed' list of trends in this new digital world we face, they would

read as follows: The consumer is totally empowered.15

”

B. COMPETITION

The fact that the applicant’s “goal for .music is to create a trusted brand and secure name

space” is only restricted to “accredited members of the .music community (18b)” creates anti-

competitive and anti-trust issues based on the restrictive nature of the application’s eligibility

and registration policies. This would certainly give a significant and unfair branding and

marketing advantage on the Internet to music community members belonging to “accredited”

associations over a significant portion of the community who are unfairly ineligible for

registration.

Discrimination will also materially harm on outreach efforts for maximizing the string’s

potential. There is also no such recognized criteria that constitute an “accredited” community

association or “accredited” member of the community.16

This alone is anti-competitive.

Incorporating select gatekeepers without any publicly recognized criteria and creating gated

exclusionary clubs is detrimental to the legitimate interests of the music community and

serving the global public interest:17

Excerpt from Techcrunch’s publication on the topic:

“It goes against the reality we know today, which is that new technologies are allowing

anyone to become a musician. Instead, it's based on the obsolete notion that only those

in a special club are "really" musicians. What you end up with is exactly what the RIAA

wants: a system where it gets to "accredit" musicians. A system where gatekeepers still

matter. If .music uses such a system, it almost immediately becomes irrelevant, and sets

itself up as an exclusionary club in an era when such things aren’t necessary anymore.”18

15 http://www.ifpi.org/content/section_views/view024.html

16 http://www.techdirt.com/articles/20120208/03161317696/always-gatekeeper-riaa-backs-music-proposal-if-its-only-

limited-to-accredited-musicians.shtml 17

http://www.techdirt.com/articles/20120201/09311617622/rise-professional-amateur-fall-gated-exclusionary-clubs.shtml 18

http://www.techdirt.com/articles/20120208/03161317696/always-gatekeeper-riaa-backs-music-proposal-if-its-only-limited-to-accredited-musicians.shtml

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C. “ACCREDITATION” CRITERIA OF CHARTER MEMBER ORGANIZATIONS

ARE NOT HISTORICALLY OR PUBLICLY RECOGNIZED BY GLOBAL MUSIC

COMMUNITY

According to the ICANN new gTLD guidebook, an established institution must have "public

historical evidence of its existence, such as the presence of a formal charter or national or

international registration, or validation by a government, inter-governmental organization, or

treaty. The institution must not have been established solely in conjunction with the gTLD

application process.”19

The "Charter Member Organizations" were established "solely in conjunction with the gTLD

process" and have never been historically recognized by the global music community before

the ICANN gTLD application process. Supporting organizations and associations for the

applicant do have history of existence but never in relation to what the applicant refers to as

a “Charter Member Organization” which forms the basis for registration eligibility. Basing the

application’s strict and restricted eligibility and registration criteria on loose and publicly

unrecognized “accreditation” criteria materially harms a significant portion of the music

community which is discriminated against and as a consequence excluded from registration.

There is no clear criteria how an entity can become a Charter Member Organization which is

in itself discriminatory and anti-competitive since the applicant ultimately makes the

decisions on who is eligible or not to become an “accredited” association.

D. VALIDATING AGENT ISSUES, ACCOUNTABILITY AND LIABILITY

The application’s eligibility and registration policy and process creates validating agent

issues for “accredited” associations, including potential privacy, business proprietary,

inconsistent database crosschecking and maintenance liability problems.

Only “musical artists, musicians, songwriters and music professionals who are validated

members of a qualifying music association will be permitted to register second level names

19 http://newgtlds.icann.org/en/applicants/agb/objection-procedures-11jan12-en.pdf (Section 3.2.2.4)

10

(18b)” and “domain registrations may be accepted, but will not resolve until the registrant has

been identified and validated as a member of the music community via their membership in

at least one existing association related to the creation and support of music (18b).”

This places a significant burden of liability to the “accredited” associations which become de-

facto validating agents since they are forced to share member information with a third-party

applicant to perform cross-checking verification. Association members have never agreed to

have their information shared with third-parties for domain registration purposes.

Furthermore, such sharing poses significant privacy and business proprietary issues for the

“accredited” associations since their members’ information is regarded strictly confidential.

Other related issues include discrimination against members of “accredited” associations if

the “accredited” associations themselves choose not to become validating agents because

of the aforementioned validating agent liabilities. This means that even members of

“accredited” associations would not be able to register their domain. This would create

unnecessary exclusion from registration or force the member to join another “accredited”

association that is a validating agent which would increase the affected registrant’s costs.

Eligible registrants can only be “validated as members of the music community through their

existing and maintained membership in existing associations related to the creation and

support of music (18b)” and “tied to their domain registration through verification of their

membership standing by their applicable music association (18b).” The applicant’s “Registry

will directly verify a registrant’s affiliation with a qualifying music association member both at

initial application and through annual reviews of each association (18b).”

“Potential domain registrants must be members of or affiliated with at least one Member

Organization of the Global Music Community. Domain registrations may be accepted, but

will not resolve until the registrant’s membership credentials have been verified. This will

require verification of relevant membership data during the registration process. This

membership will be crosschecked with the relevant Member Organization. Verification of

continued membership is required for renewal, to ensure ongoing eligibility (20e).”

This means that if a legitimate member of an “accredited” association does not renew their

membership with their association they will lose their “ongoing eligibility” since “verification of

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continued membership is required for renewal” and unfairly lose their domain. This raises

competition issues against “accredited” associations since locking legitimate members into

membership to maintain their domain registration can be construed as anti-competitive and

detrimental to the interests of the community member.

Excerpt from Digital Music News publication on topic:

“What if that registration was subject to approvals and conditions, as determined by a

clique of music industry organizations? And what if you had to be a member of one

of those organizations to even be considered for approval? Far Further...outlines a

plan to make sure applicants are part of the exclusive club.

"Domain registrations may be accepted, but will not resolve until the registrant

has been identified and validated as a member of the music community via

their membership in at least one existing association related to the creation

and support of music."

But wait – it gets worse. Because if you get approved, then have a falling out with

your trade organization, you could easily lose your domain. And what if you switch to

a trade organization not on the approved list?

"Should the registrant fail to meet the eligibility criteria, they risk the

suspension and ultimately deletion or loss of their domain name. Verification

of continued membership is required for renewal, to ensure ongoing eligibility."

This raises all sorts of potentially bad scenarios. What if a company gets kicked out of

a group based on a legal disagreement – one that would normally be resolved by the

courts? In that scenario, the group risks losing its domain name, which could

translate into the company then losing its business overnight. It's a massive risk.

The potential abuses quickly degenerate into a laundry list… And what about the next

crop of superstars? Do those artists need to belong to an approved group to register

their name and collect fans?

The question is whether this old boys club summarily puts .music into the loser

category… Stick with .com or something else. Which means this sort of ultra-

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exclusivity could mean death in incubation. Extensions like .info never took off, and

this sort of behavior could create a similar fate for .music.20

Excerpt from Buzzfeed publication on the topic:

What if community support means private control? Far Farther seems to want an iron

grip on anyone looking to use a “.music” domain.

This means that if you are a musician who does not belong to the trade organizations

supporting Far Farther, you will not have access to the domain… What would that

mean for someone early in their career who has no need to join a trade group?

Creating a website usually doesn't require people to pay membership dues.

"That strikes me as really bad because technology has made it so that many of these

organizations are obsolete," said digital music expert Zisk. "What the Internet is about

is disintermediation — musicians being able to connect with fans directly. Not to go

through some old-school organizations. That's not fair."21

E. ABSENCE OF A GLOBALLY RECOGNIZED AND CONSISTENT

“ACCREDITED” ASSOCIATION DATABASE FOR VALIDATION COMPROMISES

THE VERIFICATION PROCESS AND INCREASES ECONOMIC COSTS TO

REGISTRANTS

The applicant states that “membership will be crosschecked with the relevant Member

Organization. Verification of continued membership is required for renewal, to ensure

ongoing eligibility (20e).”

20 http://www.digitalmusicnews.com/permalink/2012/120625riaa

21 http://irene.buzzfeed.com/reyhan/the-day-the-music-died-2

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However, an internationally-recognized and consistent member database belonging of the

applicant’s “accredited” association to perform the verifications, crosschecking and

maintenance of membership described in its eligibility and registration policies is non-

existent.

This means that the verification process selected is compromised and is not enforceable nor

scalable. Costs associated with setting up such a database in a manual manner would be

significant, highly time consuming and lead to unnecessarily higher domain pricing which

would create economic harm to the community. In addition, manual crosschecking and

ensuring that members retain their membership with “Accredited” associations also

increases the liability and workload capacity for these validating agents. Undertaking such a

responsibility is not a primary purpose or mission for any music association. This will

translate into higher economic costs and a needlessly higher domain registration pricing to

registrants.

Executing and enforcing such a manual "cross-checking" process as a standardized

mechanism for eligibility and registration will be unmanageable, expensive and time-

consuming and likely not within the mission of “Accredited” associations.

SERVING THE GLOBAL PUBLIC INTEREST

Internet statistics reveal the size, diversity, semantic and cultural significance of “music.”

According to Google Adwords, the "music" category of keywords, including short-tail and

long-tail variations, is the Internet’s most searched category e.g. the term "music" has

226,000,000 monthly searches on Google. Variations of other keyword phrases with the term

"music" amount to billions of monthly searches too. Other related terms within the music

category enjoy millions of global searches, such as "lyrics" (338,000,000), "music songs"

(101,000,000) and "mp3" (277,000,000) respectively. Popular music genres enjoy millions of

global searches too e.g."rock" (83,100,000). Popular music artists also enjoy millions of

searches, such as Justin Bieber (30,000,000). The term "music" translated in other

languages also enjoy millions of global searches, such as the Spanish term "musica"

(185,000,000).

14

YouTube, according to Alexa,22

is the 3rd most visited site after Google and Facebook. The

term "Youtube" has 1,380,000,000 monthly searches on Google. The "music" channel is the

most popular category on Youtube.23

According to ComScore, 40% of YouTube's audience

clicked over in July 2011 to watch music videos. Vevo's music channel accounted for 38% of

YouTube's viewers. This clearly substantiates the cultural and semantic nature as well as the

popularity of "music", making this a "sensitive" string that is a public resource to be

consumed by the entire community, not a club of associations.

The applicant acknowledges that “the choice of “music” as a string is important” and

identifies community members as “the people who create, write, record, perform, develop,

teach, preserve, nurture, promote, distribute and sell music, think of themselves as members

of the music community. “Music” is the one tribal identity that is global (20d).” However, the

application chooses to exclude and discriminate against music fans, DIY artists and other

legitimate members of the music community “tribe” who fulfil that identification for eligibility.

The applicant’s intended registration policies discriminate against supporting the purpose of

the string by creating a “restricted domain space” where second level .music domain names

can only be registered by entities with “Music Association⁄Organization membership or

affiliation with at least one Member Organization of the Global Music Community (20e).”

The application’s discriminatory nature is highlighted by its acknowledgement that “the string

“music” is also relevant for the consumers or fans of music. Although the music lover or

consumer is not defined as part of the Global Music Community, they do share a common

bond: a passion for music. The music lovers and consumers are very much a sustaining

force and the “raison d’etre” for the Global Music Community.” Despite fans being a

sustaining force of the community, they are excluded in a discriminatory manner which

relegates the entire user experience of the string. A music public resource without fan

participation cannot exist.

Despite this, the applicant acknowledges that their “definition of the music community does

not include individual consumers of music (20d)” even though they form a substantial portion

of the community playing a leading role on how music is distributed and marketed on the

Internet today.

22 http://www.alexa.com/topsites

23 http://adage.com/article/digital/popular-channel-youtube/229281/

15

Concrete evidence aforementioned factually substantiates that discrimination will have a

materially detrimental impact on user experience and trust since a significant portion of the

music community, such as music fans and DIY artists, are not eligible for registration

creating concrete economic and reputational harm and interference with community core

activities. The lack of participation through the applicant’s discriminatory registration eligibility

damages the development of a more engaging and shared user experience as well as

adversely harms the creation of a more collaborative, innovative and positive network effect

if the entire music community was allowed to join and contribute as registrants. Other

members of the community have expressed similar opinions on the application’s severe

consequences in ICANN’s public comments, including Grammy award winner E-Love24

,

NRG music award winner Melissa Mars25

, DIY musician Travis Pearman26

and NUE Talent

Agency27

.

24 https://gtldcomment.icann.org/comments-feedback/applicationcomment/commentdetails/11706

25 https://gtldcomment.icann.org/comments-feedback/applicationcomment/commentdetails/11702

26 https://gtldcomment.icann.org/comments-feedback/applicationcomment/commentdetails/11718

27 https://gtldcomment.icann.org/comments-feedback/applicationcomment/commentdetails/11443

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iii) Correspondence with ICANN and ICC

In regard to GAC Advice, ICANN solicited responses from applicants for the strings

identified by the GAC regarding whether they planned to operate the applied-for TLDs as

exclusive access registries (defined as a registry restricted to a single person or entity and/or

that person's or entity's Affiliates" (as defined in Section 2.9c of the Registry Agreement).

The responses were submitted to the New gTLD Program Committee (NGPC) of the ICANN

Board. On 28 September 2013, the NGPC adopted a Resolution on GAC Category 2

Advice28

allowing applicants not planning to operate as exclusive access registries, and that

are prepared to enter the Registry Agreement as approved, to move forward to contracting.

On October 8th, .MUSIC (DotMusic) sent written correspondence to ICANN

29 in relation

to Applicant Responses (such as .music LLC):

We write as a follow-up to our most recent Letter to ICANN (October 8th)30

to formally record and publish our concerns about new material changes arising from ICANN NGPC Resolutions and their impact on the current Community Objection process. Specifically, we would like to highlight the effect of potentially prejudicial “exceptions” through the acceptance of certain GAC advice and ICANN NPGC resolutions.

On October 10th, 2013 .MUSIC followed up its email after the release of GAC Category 2

Advice Form Responses:

… it has come to our attention that two of the Applicants we have mentioned inour Letter (who are subject to community objections) have materially changed their opinion and clearly stated that their generic string application(s) for music-themed TLDs will no longer be operated as "exclusive" TLDs, a clear statement of admittance that their original applications' "exclusive" access music-themed TLDs create a strong likelihood of harm.

This is exactly the kind of issues on material changes our Letter has been trying to illustrate in light of ongoing Community Objections on the subject matter which now have no other predictable and consistent recourse but to be upheld given the transparent admittance by these Applicants: Amazon,

31 Far Further/ .music

LLC.32

We kindly request these statements by these two Applicants and our

28 http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-28sep13-en.htm#2.a

29 http://www.icann.org/en/news/correspondence/roussos-to-crocker-et-al-08oct13-en.pdf

30 http://www.icann.org/en/news/correspondence/roussos-to-crocker-et-al-12jul13-en.pdf on the 12th, July 2013

with ICANN response at http://www.icann.org/en/news/correspondence/willett-to-roussos-14aug13-en.pdf on 14th August, 2013 31

http://newgtlds.icann.org/sites/default/files/applicants/09oct13/gac-advice-response-1-1316-18029-en.pdf 32

http://newgtlds.icann.org/sites/default/files/applicants/09oct13/gac-advice-response-1-959-51046-en.pdf

17

Letter be forwarded to the ICC Panelists since they are crucially pertinent to the cases at hand. We also kindly request some clarification statements from both ICANN and the ICC how such material changes will be addressed and handled since these Applicants' community objection responses were inconsistent with these GAC Category 2 Advice statements they have just made. It is clearly evident that (i) their original application submission was not done in error and such material changes and GAC Category 2 Advice statements: (i) affect third-parties materially, especially objectors and applicants in contention set, (ii) create unfairness to both objectors and applicants in contention set, (iii) are material, and (iv), if allowed, create a precedent with unintended consequences to the new gTLD Program.

ICANN responded on October 22nd

, 2013.33

33 http://www.icann.org/en/news/correspondence/willett-to-roussos-22oct13-en.pdf

18

iv) Correspondence with Panel and ICC and Proof of

Exclusive Access Language in .music LLC’s

Application

On October 13, 2013 another email was sent to the Expert and the ICC pertaining to

objected-to Applicant’s GAC 2 Response material change and position change in relation to

their exclusive access applications for music-themed .music alerting GAC of their intentions

to change their registries from exclusive to non-exclusive:

…it is unclear what the Applicant intends to do with the proposed gTLD string.…the question of whether or not Applicant’s registrar and registry Policies areagainst the Community and Public interests are the questions presented before this Panel. Accordingly, the new public statements by Applicant that seem either to change their position or run counter to their Application Policies require attention. Because this situation is neither contemplated in the Rules nor what would be expected in a typical proceeding (where the matter is not fluid and changing while under evaluation), the Community respectfully requests clarification from the ICC.

The GAC (and the ICANN NGPC) made it clear that “closed generics” are against the public interest. Applicant’s Response to the GAC Advice

34 appears to be

inconsistent with their stated Policies and could be interpreted as an admission that Applicant’s exclusive registry/sole registrar policies were not in the public or community interest. In its Response to GAC Advice Category 2 Applicant, ostensibly to respond to or avoid GAC criticism, advised ICANN that they will not run an “exclusive access” registry.

While the Applicant may believe that their submission to ICANN in response to the GAC Advice is immaterial, their Application -- as filed prior to the April 12, 2013 Community Objection submission to the ICC -- clearly represents that that they will be the “sole registrar” with resellers (Affiliates) that are only composed of Community Member Associations formed before 2007.

The Application also includes a contractual inclusion of a Policy Advisory Board composed of only Community Member Associations “formed before 2007.” ("The dotMusic Registry will establish a Policy Advisory Board (PAB) before launch of the TLD. The role of the PAB will be part of the .MUSIC LLC’s contract with ICANN, the Registrar-Registry Agreement and the Registrant Agreement. The PAB will be comprised of twenty-one (21) members representing the Charter Member Organizations of the Global Music Community” - See Applicant’s Application Answer to Question 20c

35).

34 http://newgtlds.icann.org/sites/default/files/applicants/09oct13/gac-advice-response-1-959-51046-en.pdf 35

https://gtldresult.icann.org/application-result/applicationstatus/applicationdetails:downloadapplication/1659?t:ac=1659

19

Far Further twice reiterates its intention to be the “sole registrar” through its statements in Section 28.4.3 of its Application, using the word “exclusive” to illustrate its “exclusive access” model: “The dotMusic Registry intends to operate as a sole registrar model but will offer exclusive reseller services for music associations to sell domain names to their memberships” and “.Music Registry will set itself up as a sole registrar, providing reseller capability to Community Member Associations (i.e Affiliates), who will in turn sell .Music domains to their memberships.” (emphasis added).

The Applicant's statements below that "even if .Music, LLC was now, or intended to operate .Music as a closed generic in the future" and that "it has absolutely nothing to do with a Community Objection" is exceptionally troubling. Applicant seeks to ignore that these issues are at the core of the Community Objection. The question is whether or not the following are against the Community (and public) interest:

(1) Applicant’s sole-registrar model with exclusive resellers (“Affiliates”) Policies;

(2) Permitting only select Charter Member Organizations / Associations ("Affiliates") formed before 2007 to (i) participate and offer registrations to their members ("Affiliates") (ii) become affiliated resellers to generate revenues through domain registrations, and (iii) become members of the .music Policy Advisory Board ("Affiliates").

If the Applicant is granted the TLD (based on the plain language of their Application) it will become both the exclusive registry (akin to a manufacturer) and also, the "sole registrar" (akin to a retailer). This vertically-integrated approach under one roof is anti-competitive and excludes a significant portion of entities with a legitimate claim to participate. This is of great significance because the Applicant's policies would appear to preclude all other .music Applicants (and any other legitimate interested party) from offering .music domains at the retail level as an ICANN-accredited registrar (or affiliate) who are not “Charter Member Organizations.”

Moreover, contrary to the Applicant’s incredulous position below, Amazon, the other “exclusive access” registry applicant for .music, recognized the relevancy and significance of the GAC Advice and responded that they plan to remove their closed "exclusive access" registry model from their application.

36 One could

conclude that these changes were made precisely because the GAC Advice (and the ICANN NGPC) made it clear that a closed or exclusive generic gTLD does not serve the global public interest (i.e there is a clear material detriment if such exclusive access registries are allowed to proceed for generic strings).

Finally, Far Further's statement that "changes to the Rules are irrelevant to the Community Objection proceeding" is plainly wrong. The Applicant’s representations to ICANN are material, and relevant to whether or not it will run a gTLD that that harms the Community and the global public interest.

36 http://newgtlds.icann.org/sites/default/files/applicants/09oct13/gac-advice-response-1-1316-18029-en.pdf

20

It is our understanding that the ICC is currently reviewing and holding decisions to assure compliance and avoid inconsistency with decisions. Accordingly, the ICC is petitioned to review this issue, allow discussion and provide clarification on these points. This issue has the potential to call into question the integrity of the process.

On November 26th, 2013 another correspondence was sent to the ICC:

…As you have indicated, the procedure for changing Applications is governed by ICANN rules… The Centre also clearly noted that… “the decision to re-open the case, should the need arise, and to take into account new or amended documents, is taken by the Expert based on the information available and the nature of the cases in question.

The rules that the Expert must abide to are governed by ICANN rules and procedures, most notably the language contained in the Applicant Guidebook (AGB). There are specific provisions in regards to Material Changes found in the AGB

37 to which all Applicants – including… .music LLC/Far Further (.music 1-

959-51046) must abide to, especially if their position is one of “exclusive access.” However, they have publicly responded to GAC with a position which is 180 degrees different to their Responses to the ICC and different to their Application. This is misleading, inconsistent and legitimate grounds for concern with respect to procedures. If both Applicants’ Responses and “original” Applications were so strong, they did have the option to defend their position with respect to GAC advice - as they did in their Objection Responses - but have now conveniently chosen a different direction, which is misleading and creates a harmful precedent in the ICANN process governing dispute resolution procedures.

It is reasonable to assume that in any proceeding – whether it is one conducted in a court of law or under an ICANN’s dispute resolution procedure – that any inconsistencies or changes in position not reflected in the original testimony – the original Application (without any PICs or GAC Advice Category 1 or 2 material changes) or their Responses to Objections - should be investigated by the Expert so that the procedures followed by the Expert are compliant with the Applicant Guidebook and no harmful precedent, unintended consequences or loopholes are created.

The ICANN Guidebook’s section on “Material Changes” is clear that any information that is deemed "false or misleading may result in denial of the application" (AGB). We strongly believe that many – if not all - music-themed Applicants have provided misleading information in their Responses to the Community Objections because such Responses are not made public by the Centre (emphasis added). As such, there is no Applicant accountability towards the ICANN dispute resolution process or transparency with the Centre since the Applicants’ Responses are not made public. We are deeply concerned with misleading music-themed gTLD Applicant Community Objection Responses especially those given to Experts that GAC Advice was “irrelevant.” Such

37

http://newgtlds.icann.org/en/applicants/customer-service/change-requests

21

statements would not be seen under a positive light by both GAC or the ICANN NGPC if they were made public to them.

It is clear that if an Application is materially changed from "exclusive" to "non-exclusive" (by incorporating Category 2 safeguards) or incorporating Category 1 enhanced safeguards, it will affect its business model, its financial statements and its Letter of Credit. Under the ICANN AGB rules such "changes" will likely "involve additional fees or evaluation in a subsequent application round" (AGB) because the entire premise of the Applicant’s Application has changed materially.

Last Thursday at the ICANN Public Forum in Buenos Aires/Argentina, we publicly informed the ICANN Board of these types of procedural loophole concerns which objected-to Applicants can use to circumvent the dispute resolution process. We have also met with the ICANN Ombudsman to express these same concerns and he recommended to reach out to the ICC and the Expert Panelist. The fact that the Centre agrees that “ICANN’s new gTLD dispute resolution procedure does not provide for any specific provision in this regard” is clear evidence of procedural loopholes that Objected-to Applicants could use to their benefit to circumvent the Community Objections.

Our objective is that Objections are treated in a transparent and accountable manner, consistent with the Applicant Guidebook and rules contained in the AGB in regards to Material Changes or with respect to a change of position that was not in the original Application. We hope that the Experts acknowledge the issues at hand and the harmful precedent as illustrated in the Material Changes section of the AGB… music-themed gTLD Objectors’ arguments, whether on the issue of “exclusive access” or “enhanced safeguards,” were based on the Applicant’s stated positions found in their Applications… Ultimately, the Expert should rule on the Applicant’s stated Policies as found in their Applications taking into consideration any relevant new statements by the Applicant as well as new, pertinent ICANN NGPC Resolutions with respect to “exclusive access” or lack of “enhanced safeguards.” Otherwise, the process has no meaning, and as long as a party can “shift” position to avoid scrutiny, there is no accountability.

Allowing inconsistent statements to be a justification for avoiding an adverse verdict would create a scenario that obviates the need for the Panel in the first place. We agree with the ICANN Resolutions and they provide additional evidence from ICANN - who, as the ICC agrees, writes the Rules - on the obvious harm created by music-themed Applications that do not have “adequate safeguards” or have “exclusive access.” We hope that the Expert Determinations are consistent and do not allow process loopholes for Objected-to Applicants to circumvent the process and the new ICANN NGPC resolutions which have vindicated the concerns presented in the music-themed Community Objections.

Both the ICANN Board and the NGPC responded to the GAC Advice and called for public

comment and input regarding “closed generic” Category 2 Applications and took action to

materially change how such gTLDs are to be operated and allowed Applicants to

intentionally materially change their Applications, in some cases from an exclusive access

22

registry to a non-exclusive registry – introducing a process which would allow substantial

amendments to Applications during proceedings. During this process ICANN failed to

respond to Objector’s stated concerns about the effect of GAC Advice on the proceedings

and failed to advise the ICC and panel about the decisions made by ICANN. The Applicant

.music LLC was not contacted by ICANN to submit a change request to alter the exclusive

access language in their Application.

23

v) .music LLC GAC Category 2 Advice Response (which

inconsistent with exclusive access language in their

current Application)

GAC ADVICE CATEGORY 2: EXCLUSIVE ACCESS Response Form for Applicants

Please  complete  this  form  and  submit  it  as  an  attachment  to  the  current  Customer  Portal  case  using  the  following  file  naming  convention:  “[Application  ID]  Response  to  GAC  CAT  2  Advice”  (e.g.,  “1-­‐111-­‐11111  Response  to  GAC  CAT  2  Advice”).  All  responses  must  be  received  no  later  than  23:59:59  UTC  on  04-­‐September-­‐2013.      

Please  note:  This  form  will  be  publically  posted.  

Application  Prioritization  Number   1557  Application  ID  

1-­‐959-­‐51046  

Applied  for  TLD  (string)   music  Applicant  Name   .music  LLC  

Questions   Response  (Please  Select  one  checkbox)  

1. Will  the  TLD  be  operated  as  an  exclusive  access  registry?

An  exclusive  access  registry  is  defined  as  a  registry  restricted  to  a  single  person  or  entity  and/or  that  person’s  or  entity’s  Affiliates  (as  defined  in  Section  2.9(c)  of  the  Registry  Agreement).  

 Yes    No  

2. Does  your  current  application  state  that  the  TLD  will  be  operated  as  anexclusive  registry?  

 Yes    No  

3. Do  you  have  a  pending  change  request  regarding  exclusive  access?  Yes    No  

1

vi) .MUSIC’s (“DotMusic”) Opposition Letter and Concerns

with .music LLC’s Application

June 29th, 2013

Concerns with Application ID 1-959-51046

To Whom It May Concern,

We would like to address our serious concerns and objection to Application ID 1-959-

51046 policies. Our concerns only relate to application policies. This is not an objection to any

organization or entity that has supported this Application. Our main objective is to shed light on

the policies and educate the entire at-large music community and interested parties.

Concern 1: Only Associations founded Prior to 2007 Can Participate and Poses Anti-

Competitive Implications and Fairness Concerns

One of the most troubling exclusionary registration policies that will serious anti-

competitive concerns and liability for supporting Organizations relates to the Applicant’s

“defined-criteria” for registration that requires “Current registration and verifiable membership in

a global music community organization that was organized and in existence prior to 2007.”1 2

This means that any legitimate “global music community organization” organized and formed

after 2007 does not qualify to become an “Accredited Association,” and, in turn, its members will

also be disallowed from registration unless they join an “Accredited Association” defined by the

Applicant that was organized before 2007.

We support the participation of the entire music community in the String – especially new

entrants from emerging and developing nations and regions such as China, India and Africa -

not just Associations organized prior to 2007. These regions are expected to grow significantly

and introduce new relevant music associations and organizations to serve those regional artists

(including collection societies, music unions, educational institutions and other music

communities) in the next decade. However, under this application all these important

constituents – who unfortunately currently have minimal exposure – will be disallowed from

participating because they have been set up before 2007.

Concern 2: Ongoing, Manual Cross-Checking of Members by Each Supporting

Association is Mandatory and Poses Privacy and Sharing Member Proprietary

Information Concerns as well as other Legal Implications

1 Applicant’s Answer to Question 20a, https://gtldresult.icann.org/application-

result/applicationstatus/applicationdetails:downloadapplication/1659?t:ac=1659 2 The Applicant alleges that this registration eligibility policy is an ICANN guideline but it is clearly not. The ICANN Applicant

Guidebook Module 4-11 language pertaining to the 2007 date relates to the “definition” of the word “community” and that there was “some understanding of the community’s existence prior to September 2007,” not an ICANN-mandated registration eligibility policy (http://newgtlds.icann.org/en/applicants/agb/string-contention-procedures-04jun12-en.pdf)

The Application’s “Accreditation” process is another worrisome component of their

restrictive eligibility registration policy. Applicant also confirmed their application policies to the

Government Advisory Committee that:

“Domain registrations may be accepted, but will not resolve until the registrant’s

membership credentials have been verified. This will require verification of relevant

membership data during the registration process. This membership will be crosschecked

with the relevant member organization. Verification of continued membership is required

for renewal, to ensure ongoing eligibility.”3

Also there is no such certification or thing to qualify an artist to be an “Accredited” artist.

Policies of such nature that require cross-checking are suitable for regulated industries (with low

volume domain registrations) that require Accreditation, such as .EDU, .COOP, .AERO or

.MUSEUM (all have under 10,000 registrations4). Incorporating such “cross-checking” policies

with a cultural term such as “music” is not applicable since no such “accreditation” exists nor is it

appropriate since it transfers all the risk and responsibility to the supporting “Accredited”

Associations to perform the “cross-checking” and share their members’ data with a 3rd-party

registrar to complete a registration. Also, and more importantly it creates a division in the

community with unfair eligibility rules that discriminate against independent artists who do not

belong to Associations.

These “Accredited” Associations will be responsible to manually verify registrant

memberships resulting into unnecessary costs especially since such a manual process is not

scalable. Other concerns include the high likelihood of legal liability since registrants are

mandated to keep an ongoing membership with an Accredited Association just to keep their

domain. If membership with an Accredited Association is not renewed each year then a

registrant will lose their domain i.e a registrant’s domain registration is reliant on ongoing

membership with supporting Accredited Association. Other legal risks and anti-competitive

issues are likely to arise since a registrant will not be able to switch membership to join a new

competing Association that was set up after 2007 since all those new Associations are

disqualified from participating.

Concern 3: Legitimate Fans are Excluded

The Application acknowledges that the “term or string “music” is also relevant for the

consumers or fans of music” and confess that they are “very much a sustaining force and the

“raison d’etre” for the Global Music Community” and that “one cannot exist without the other” but

excludes them from participation.5 This is not given fans rising increasing influence on artist

careers. According to the 2013 Crowdsourcing Report fan funding has risen 81% to $2.7 billion.

Fans have created a new avenue for artists to raise funds without giving up creative control and

3 http://newgtlds.icann.org/sites/default/files/applicants/23may13/gac-advice-response-1-959-51046-en.pdf, Page 5

4 http://www.icann.org/en/topics/new-gtlds/benchmarking-report-15feb10-en.pdf, Page 16

5 Ibid

have successfully funded more than 1 million campaigns in 2012. The significance of this trend

and its impact on music artists is compelling since global crowd funding volume is forecasted to

increase to $5.1 billion.6

Concern 4: Application Policies Can NOT be Changed at a Future Date

While Applicant might think policies could be changed in the future, according to ICANN rules,

the Applicant can not change any of their policies at a future date. Evaluation and scoring is

based on the registration policies described in the Application.7 The scoring and evaluation is

not based on policies that are changing or to be determined at a future date. Such a “change”

by Applicant would be considered a “material change” because it directly affects the Community

Priority Evaluation.8 Moreover, changes from an Applicant’s stated polices would adversely

affect other Applicants in contention. As outlined by ICANN guidelines, “ICANN reserves the

right to require a re-evaluation of the application in the event of a material change. This could

involve additional fees or evaluation in a subsequent application round. Failure to notify ICANN

of any change in circumstances that would render any information provided in the application

false or misleading may result in denial of the application.”

Please do not hesitate to contact me to discuss any of these issues or concerns that we

have expressed in this letter. We believe they are important issues that affect the Domain Name

System (DNS) and the artist community that is heavily reliant on the Internet for a substantial

core of its activities.

Sincerely,

________________________________

Constantine Roussos .MUSIC Email: costa@music.us Telephone: +1 310 985 8661 Supporting .MUSIC Community Member Organizations (MCMO): http://music.us/supporters.htm

6 http://www.crowdsourcing.org/editorial/2013cf-the-crowdfunding-industry-report/25107

7 Applicant Guidebook, http://newgtlds.icann.org/en/applicants/agb/guidebook-full-04jun12-en.pdf, Module 4.2.3, Criterion #3 at 4-15

and 4-16 8 http://newgtlds.icann.org/en/applicants/customer-service/change-requests

1

ANNEX K

ICANN Re-Consideration Request filed by .MUSIC

Sir Robin Jacob’s Conflict of Interest

and Work Relationship with Samsung,

one of Google’s (an objected-to

Applicant’s) main multi-billion dollar Business Partners

Proof that Panelist Sir Robin Jacob was hired to work on

behalf of Samsung after he ruled in Samsung’s favor as

the Judge in a patent case between Samsung and Apple

(13-02-27 United States International Trade Commission

ITC-862 Protective Order Subscription).

UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C.

In the Matter of

CERTAIN ELECTRONIC DEVICES, INCLUDING WIRELESS COMMUNICATION DEVICES, TABLET COMPUTERS, MEDIA PLAYERS, AND TELEVISIONS, AND COMPONENTS THEREOF

Inv. No. 337-TA-862

NOTICE OF INSTITUTION OF INVESTIGATION

Institution of mvestigation pursuant to 19 U.S.C. § 1337

AGENCY: U.S. International Trade Commission

ACTION: Notice

SUMMARY: Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on November 30,2012, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, on behalf of Ericsson Inc. of Piano, Texas and Telefonaktiebolaget LM Ericsson of Stockholm, Sweden. Letters supplementing the complaint were filed on December 3, December 12, and December 19, 2012. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electronic devices, including wireless communication devices, tablet computers, media players, and televisions, and components thereof by reason of infringement of certain claims of U.S. Patent No. 6,029,052 ("the '052 patent"); U.S. Patent No. 6,058,359 ("the '359 patent"); U.S. Patent No. 6,278,888 ("the '888 patent"); U.S. Patent No. 6,301,556 ("the '556 patent"); U.S. Patent No. 6,418,310 ("the '310 patent"); U.S. Patent No. 6,445,917 ("the '917 patent"); U.S. Patent No. 6,473,506 ("the '506 patent"); U.S. Patent No. 6,519,223 ("the '223 patent"); U.S. Patent No. 6,624,832 ("the '832 patent"); U.S. Patent No. 6,772,215 ("the '215 patent"); and U.S. Patent No. 8,169,992 ("the '992 patent"). The complaint further alleges that an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337.

The complainants request that the Commission institute an investigation and, after the investigation, issue an exclusion order and a cease and desist order.

ADDRESSES: The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, S.W., Room 112, Washington, D.C. 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining

access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at http://www.usitc.gov. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov.

FOR FURTHER INFORMATION CONTACT: The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.

AUTHORITY: The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 C.F.R. § 210.10 (2012).

SCOPE OF INVESTIGATION: Having considered the complaint, the U.S. International Trade Commission, on January 3, 2013, ORDERED THAT -

(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain electronic devices, including wireless communication devices, tablet computers, media players, and televisions, and components thereof that infringe one or more of claims 1-3, 5, 8, 11,13,14, and 18 of the '052 patent; claims 28-33, 36, 37, 39-43, 46, 47, 50, 51, and 54 ofthe '359 patent; claim 30 ofthe '888 patent; claims 1-3, 8, 10,19,20,23, 24,26-33, 38, 40, 50, 53-55, 57, and 62-68 ofthe '556 patent; 1, 4, 6, 9-13, and 16-20 of the '310 patent; claims 1, 24-26, 28, 30, and 54 of the '917 patent; claims 1, 4, 6, 7, 17, 20, 22, and 23 ofthe '506 patent; claims 1-3,11-14, 19, 21, 22, and 30-32 ofthe '223 patent, claims 1, 4, 9, 10, and 12 ofthe '832 patent; claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32, 34, 45, 46, 49, 52, and 54 ofthe '215 patent; claims 1, 3, 5-8, and 10-15 ofthe '992 patent, and whether an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337;

(2) Pursuant to Commission Rule 210.50(b)(1), 19 C.F.R. § 210.50(b)(1), the presiding administrative law judge shall take evidence or other infomiation and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors, 19 U.S.C. §§ 1337(d)(1), (f)(1), (g)(1);

(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:

(a) The complainants are:

Ericsson Inc. 6300 Legacy Drive Piano, TX 75024

2

Telefonaktiebolaget LM Ericcson Torshamsgatan 23, Kista 164 83 Stocldiolm Sweden

(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:

Samsung Electronics America, Inc. 85 Challenger Road Ridgefield Park, NJ 07660

Samsung Telecommunications America LLC 1301 East Lookout Drive Richardson, TX 75082

Samsung Electronics Co., Ltd. Samsung Electronics Building 1320-10, Seocho2-dong Seocho-gu, Seoul 137-857 Republic of Korea

(c) The Office of Unfair Import Investigations, U.S. Intemational Trade Commission, 500 E Street, S.W., Suite 401, Washington, D.C. 20436; and

(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.

Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 C.F.R. § 210.13. Pursuant to 19 C.F.R. §§ 201.16(d)-(e) and 210.13(a), such responses will be considered by the Commission i f received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.

3

Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final detennination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.

By order of the Commission.

William R. Bishop Supervisory Hearing and Information Officer

Issued: January 3,2013

4

1

ANNEX L

ICANN Re-Consideration Request filed by .MUSIC

Correspondence with ICC before

Community Objections were filed

Clarifications from ICC that both “Objector and Objector Related-

Entities will be taken in context” and that “ICC does not require signed

letters from the Related-Entities”

2

From: Constantinos Roussos Sent: 25 February 2013 23:07 To: TUEMPEL Hannah Cc: KOSAK Spela; Tina Dam Subject: ICANN / ICC Community Objection Clarification - Related group of objectors filing under one community-objection

Dear Hannah Tuempel, Thank you for the call. It was very helpful. In recap:

Objector and Objector Related-Entities will be taken in context by Expert Panel in regards to determining "likelihood of material harm" and determining that the Objector and Related-Entities represent "a significant portion of the community" that a likelihood of material harm is inflicted upon.

The ICC does not require signed letters from the Related-Entities

If we have any more questions we will let you know.

Again thank you for the call and your prompt response to this matter.

3

From: Constantinos Roussos Sent: 25 February 2013 23:07 To: TUEMPEL Hannah Cc: KOSAK Spela; Tina Dam Subject: ICANN / ICC Community Objection Clarification - Related group of objectors filing under one community-objection

Dear Hannah Tuempel, We have some questions regarding to community objections. We have a coalition of music organizations and federation of governments and arts councils that represent a majority of the music community. Our goal is to object "collectively" as a majority of the music community against music-themed applicants that create a likelihood of material harm to the music community's legitimate interests, implicitly or explicitly. We would like to do this collectively not independently against multiple applicants. We understand that each different application requires a different objection. Your FAQ on http://www.iccwbo.org/products-and-services/arbitration-and-adr/expertise/icann-new-gtld-dispute-resolution/how-to-file-an-objection/ states:

An Objector may wish to be supported by other entities: o An Objector may wish to use the support of other entities to demonstrate its

standing. o An Objector may also wish to use the support of other entities to finance its

Objection. However, only the Objector itself will be considered as a party to the proceeding. All

other entities will be considered as related entities. Accordingly, in case of a Community Objection, the Expert's test as to whether the

Objector has standing, will be tested solely with regard to the Objector itself.

Questions:

1. Does the ICC count the Objector and Related-entities as a one unified group of objectors filing the same objection collectively?

2. We understand the lead Objector has to demonstrate standing but how does that relate to showcasing "significant portion of the community"? To showcase a "significant portion of the community" will both the Objector with standing and Related-entities be counted as one singular group of objectors representing a majority of the community sharing the same arguments under the Objection?

3. As a community-based applicant we have a coalition of supporters and we will be participating as a "related-entity" to the objector with standing along with our supporters as "related-entities." Does the ICC require signed objection letters from each one of the related-entities or is it fine to attach them as related entities to the objector with standing without signed letters?